Peron Restaurant Inc. v. Young & Rubicam Inc.

179 A.D.2d 469, 578 N.Y.S.2d 194, 1992 N.Y. App. Div. LEXIS 301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1992
• Status: Published

Opinion

Although the court’s failure to direct the filing of an undertaking does not render its Yellowstone injunction void, the matter is remitted to the IAS court to fix an undertaking, unless the parties stipulate to an amount (see, Times Sq. Stores Corp. v Bernice Realty Co., 107 AD2d 677, 681). Since the court’s order of March 29, 1991 failed to conform strictly to the court’s decision of January 25, 1991 concerning the commencement of the stay, the decision controls (Di Prospero v Ford Motor Co., 105 AD2d 479), and the court should have resettled the March order when defendant moved to vacate same (see, Berg v Dimson, 151 AD2d 362, lv denied 75 NY2d 703, rearg denied 75 NY2d 947). The decision of January 25, 1991 is dismissed as nonappealable (Goldberg v Orzac, 30 AD2d 697, affd 23 NY2d 919). Under these circumstances, we enlarge the cure period to 10 days from service of a copy of this order, without prejudice to or consideration of plaintiff’s ability to cure. Concur — Wallach, J. P., Kupferman, Ross and Smith, JJ.